AS TO THE ADMISSIBILITY OF
by Kęstutis VISOCKAS
The European Court of Human Rights (Third Section) sitting on 6 January 2000 as a Chamber composed of
Mr P. Kūris,
Mrs F. Tulkens,
Mr W. Fuhrmann,
Mr K. Jungwiert,
Mrs H.S. Greve,
Mr K. Traja, judges,
and Mrs S. Dollé, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 June 1999 by Kęstutis Visockas against Lithuania and registered on 25 June 1999 under file no. 49107/99;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Decides as follows:
The applicant is a Lithuanian citizen, born in 1961 in Šiauliai. He is currently detained. The applicant is represented by Mr V. Falkauskas, a lawyer practising in Joniškis.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In the evening of 11 February 1999 the applicant was arrested by the police. While questioning the applicant, the officers informed him that Ms A.J. had lodged a complaint, alleging that in the afternoon of the same day he had beaten and assaulted her with a knife. The applicant was told that he was suspected of having committed that offence. On 12 February 1999 he was questioned by the police in the presence of his official defence counsel. The applicant was informed that criminal proceedings for causing actual bodily harm within the meaning of 116 § 2 of the Criminal Code had been instituted against him.
On 13 February 1999 the applicant was brought before a judge of the Joniškis District Court. A prosecutor and the applicant’s representative were present. The judge questioned the applicant as to the reasons for the arrest. The applicant did not deny the incident, but claimed that he had not deliberately beaten Ms A.J. The prosecutor then gave his version of the facts, stating that the applicant had in fact been suspected of aggravated affray under Article 225 § 3 of the Criminal Code, not of causing actual bodily harm under Article 116 § 2. Then the defence counsel intervened, contending that the facts presented by the prosecutor had been perverse, that the defence had not been informed of the charge of aggravated affray, that the criminal case had been instituted improperly, and that there were no grounds for the applicant’s detention. On the same day the judge ordered the applicant’s detention on remand until 13 May 1999 on suspicion of having committed aggravated affray, as inter alia he might abscond and influence the complainant and the witnesses.
The applicant appealed, stating inter alia that prior to the court hearing he had been denied access to the case-file and the prosecution’s application requesting his detention, that he had only been informed of the charge under Article 116 § 2 of the Criminal Code and that he had not known about the accusation of a more serious offence under Article 225 § 3. The applicant asserted that his detention was unlawful, and that his defence rights under Article 6 of the Convention had been violated.
On 8 March 1999 the Šiauliai Regional Court examined the appeal in the presence of the applicant’s defence counsel and a prosecutor. The court dismissed the appeal, finding that the applicant’s detention on remand on suspicion of having committed aggravated affray under Article 225 § 3 of the Criminal Code was lawful. The Regional Court referred to the strength of the evidence in the case-file, and the risk of the applicant absconding and obstructing the establishment of the truth in the case.
On 2 June 1999 the Joniškis District Court examined the charges against the applicant. The court reclassified the charge of aggravated affray under Article 225 § 3 of the Criminal Code as causing actual bodily harm under Article 116 § 2 of the Code. The applicant was found guilty of that offence and sentenced to 10 months’ imprisonment.
The applicant submits that he decided not to appeal against the first instance judgment as it was “sufficiently objective”.
B. Relevant domestic law
Relevant provisions of the Criminal Code (Baudžiamasis kodeksas):
Article 116 § 2 provides that a person guilty of causing light bodily harm is punishable with up to one year’s imprisonment.
Aggravated affray within the meaning of Article 225 § 3 is punishable by a sentence of three to seven years’ imprisonment.
Relevant provisions of the Code of Criminal Procedure (Baudžiamajo proceso kodeksas):
Articles 10 and 104 provide that no one can be detained save by virtue of a decision of a court or judge.
Article 137 provides that a prosecutor, investigator or interrogator can arrest a person while he is committing an offence or immediately after its commission when there are grounds for detention on remand specified in Article 104 § 3 (see below). This arrest can last for no longer than 48 hours, during which time the arrested person must be brought before a judge who decides whether or not to order detention on remand.
Article 104 § 3 specifies that a suspect can be detained on remand there is reasonable cause to believe that he may:
(1) abscond from the investigation and trial;
(2) obstruct the establishment of the truth in the case;
(3) engage in new offences whilst suspected of having committed particular crimes.
Article 104-1 provides:
“… A prosecutor shall bring a person … arrested under Article 137 of this Code before a judge within not more than 48 hours after the moment of the arrest, with the application to order his detention on remand … . The judge must hear the person as to the grounds of the arrest. The prosecutor and the counsel shall take part in the inquiry. The judge … is entitled to hear the prosecutor in the absence of the arrested person and his counsel, or to question the arrested person and his counsel only. After having questioned the arrested person, the judge may accept the prosecutor’s application and order the detention on remand by designating the term of the detention, or refuse to accept the application and order detention.”
Pursuant to Articles 104-3 and 104-4, a judge shall take a reasoned decision on the detention of a person, specifying the offence alleged against him and the grounds for the detention. The detention order shall be pronounced immediately after it is taken or within “the shortest time possible”, and shall be presented for the signature of the detainee, unless the latter cannot or does not want to sign it.
“A detainee or his counsel shall have the right during the preliminary investigation or trial to lodge with an appellate court an appeal against the detention order or the extension of the term of the detention on remand … . With a view to examining the appeal, there shall be convened a hearing, to which the detainee and his counsel or counsel alone shall be called. The presence of a prosecutor is obligatory at such a hearing.
The decision taken by the appellate judge is final and cannot be the subject of a cassation appeal. If the appellate judge … finds procedural irregularities that do not affect the essence of the detention order, he must remedy the defects without quashing the order … .”
1. Under Article 5 § 1 of the Convention the applicant complains that there were no grounds for his detention and that it was unlawful. He further complains that he had no access to the case-file and did not know that he had been accused of aggravated affray until 13 February 1999, that his defence rights and the equality of arms were not ensured during the hearing, and that the detention order of 13 February 1999 did not comply with “a procedure prescribed by law”. In addition, the courts that decided on his detention based their decisions solely on the suspicion of his having committed aggravated affray, whereas he was subsequently acquitted of that offence and convicted of the less serious offence of causing actual bodily harm; in the applicant’s view, his detention could not be lawful as it was based on a charge in respect of which he was not convicted.
2. Under Article 6 of the Convention the applicant claims that the criminal proceedings against him were unfair. He alleges various material and procedural irregularities, including breaches of his defence rights and the equality of arms during the hearing of 13 February 1999 and the pre-trial investigation of the case.
1. The applicant complains about the lawfulness of his detention on remand under Article 5 § 1 of the Convention, which provides, insofar as relevant, as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; … .”
Article 5 § 1 of the Convention requires that arrest and detention on remand be compatible with domestic law and not arbitrary. A period of the detention is, in principle, “lawful” if it is based on a court order. Even flaws in the detention order do not necessarily render the underlying period of detention unlawful within the meaning of Article 5 § 1 (see, mutatis mutandis, the Benham v. the United Kingdom judgment of 10 June 1996, RJD 1996-III, pp. 753-754, §§ 42-47).
The fact that the charge of aggravated affray against the applicant was eventually replaced by a less serious one does not of itself show that there was no reasonable suspicion of his having committed an offence at the time of his remand in custody. There can be no requirement under Article 5 § 1 of the Convention that the legal characterisation of the offence be fully established, since that is part of the aim of the subsequent investigation.
It has not been alleged that on 13 February 1999 the District Court acted in excess of jurisdiction. Indeed, it clearly acted within its jurisdiction insofar as it had power to entertain the prosecutor’s application and to make an appropriate order in respect of the applicant’s detention under Articles 10, 104 and 104-1 of the Code of Criminal Procedure. The Court observes that Article 104-1 of the Code lays down no particular procedure for the hearing of the prosecutor’s application, let alone a requirement for the judge to hear the parties before the appropriate decision is made. Nevertheless, the parties were both heard on 13 February 1999.
Nor can it be said that the applicant’s remand in custody was arbitrary. He was detained on suspicion of his having committed an offence. His detention was based inter alia on the fear of his absconding and influencing the alleged victim and witnesses. It has not been suggested that the District Court acted in bad faith, or that it neglected to attempt to apply the relevant legislation correctly (op. cit.).
The Court is therefore satisfied that the detention order of 13 February 1999 complied with “a procedure prescribed by law”, and that the period of detention which resulted from it was “lawful” within the meaning of Article 5 § 1 of the Convention.
The Court notes that the applicant also complains, in essence, about being denied information as to “the reasons for his arrest and of any charge against him” within the meaning of Article 5 § 2 of the Convention.
The Court considers that the purpose of Article 5 § 2 is to enable the arrested person to challenge the reasonableness of the suspicion against him and to state whether he admits or denies the offence. It does not require that the necessary information be given in a particular form, or that it consist of a complete list of the charges to be laid against the arrested person. Furthermore, Article 5 § 2 does not specifically require disclosure of the complete case-file, provided sufficient information is given to facilitate the pursuit of the remedy envisaged by Article 5 § 4 of the Convention.
The Court notes that the applicant was orally informed about the complainant’s allegations against him on his arrest in the evening of 11 February 1999. On the next day he and his counsel were acquainted with the fact that the criminal proceedings had been instituted. Subsequently, following the hearing of 13 February 1999, the applicant was aware of the formal characterisation of the charge against him, on the basis of which he filed the appeal against the detention order. The Court finds that the guarantees of Article 5 § 2 of the Convention were satisfied in the present case.
Article 5 § 4 of the Convention may also be relevant to this part of the application. It provides that
“Everyone who has been deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
However, the Court notes that the applicant was entitled to appeal against the detention order, and that his appeal was examined by the Regional Court in the presence of his defence counsel and the prosecutor. On the basis of the applicant’s submissions and the material held, the Court finds no indication of any procedural inequalities in connection with the appellate hearing. The Court thus cannot find any appearance of a breach of Article 5 § 4 of the Convention in the present case.
It follows that this part of the application is to be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicant also complains under Article 6 of the Convention, which reads, insofar as relevant, as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence; … .”
However, in deciding not to appeal against the first instance judgment, the applicant failed to exhaust domestic remedies in connection with the criminal proceedings against him as required by Article 35 § 1 of the Convention. The Court is thus not required to decide whether or not the facts alleged by the applicant in this part of the application disclose any appearance of a violation of Article 6 the Convention. It follows that this part of the application must be rejected under Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
S. Dollé N.
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